Quick Page Table of Contents

Cinergy Research Correspondence

Information and Privacy Commissioner Order

The City of Toronto (the City) received a request under the Municipal Freedom of Information and Protection of Privacy Act (the Act) for access to the following information:

1) Request for Proposal No. 9119-03-7275.2) Loan agreement with the Federation of Canadian Municipalities for Green Municipal Investment Fund (GMIF) on financing.3) Report: “A Framework for Establishing an Energy Retrofit Program and Financing Strategy.”4) Any interim or final document from [a named company] giving recommendations for City arenas and A.I.R. [artificial ice rinks] energy savings (incl. Committee minutes).
The City granted access to the records responsive to Items one and three of the request.

In response to Item two, the City determined that no records existed, as the agreement had not been completed.
In response to Item four, the City advised that disclosure of the responsive record might affect the interests of a third party (the affected party), under section 10(1) of the Act. The City provided the affected party with an opportunity to make representations concerning disclosure of the record under section 21 of the Act.

After receiving representations from the affected party, the City advised the requester that a decision had been made to deny access to the responsive record, pursuant to the mandatory third party information exemption in section 10(1) of the Act.

CINERGY Correspondence Diary 1 - 2005 and 2006

Early concerns and attempts to get information

2005

In this set of correspondence, CELOS raises concerns about the impending Cinergy Arena retrofit project, and asks for a due diligence review, and details of the project. The concern is rooted in informal conversations with maintenance staff about the value of contracting out the retrofit work.

September 16, 2005, letter to Brenda Librecz, General Manager, City Of Toronto Parks, Forestry and Recreation:

“...our little research group, CELOS, would like to request that you carry out some “due diligence” that seems to be missing, on the city rinks/arenas energy retrofit contract with Cinergy/Vestar – before you sign off on it. I enclose the results of our research so far, plus the questions that we feel need to be answered.
It may be that this project has the potential of being a giant headache for the City, not only in terms of more bad publicity, but also in terms of its impact on your division. Your front-line staff also seem to have major misgivings – insofar as they even know about the project – and the need to follow up on this may be rather urgent by now. Please answer these questions:

A. Utility cost details

1. What is the base utility data that’s being used in this project? (We need to see the detailed records – are they better than my chart?)

2. How were these numbers obtained?

3. How will the individual rinks/arenas’ utility costs be measured as the project goes on?

B. Repayment details:

1. When does Parks and Recreation begin paying back the debt for the Vestar project?

2. What is the yearly repayment schedule as of now?

3. How will the arenas’ repayment portion be calculated? Have the arenas signed on of their own free will, or did the City just require it of them? Or did the arenas (perhaps) promote this Vestar plan? If any of the Board of Management arenas opt out of the retrofit project, how will that affect Vestar’s $10.2 million contract?

Records of Arena/rink retrofit project meetings

Date submitted: Sept.27 2007

Request: Please let us examine all correspondence, meeting minutes, and interim or final reports on the arena energy retrofit program/project. Please include current and recent-year comparative utility-use numbers and costs for arenas/rinks. (This follows up on Freedom of Information request #05-1379)

Response:

October 23, 2007 The search by staff of PFR has found no records that respond to your request. Access cannot therefore be granted, as no such records exist.

Staff of Facilities and Real Estate have found records that respond to your requests....there are no additional responsive records....since the "Final Concept Reports" were received on August 8, 2005 for the Board of management Arenas, and on July 25, 2005 for City Operated indoor and outdoor rinks, no further or interim reports involving detailed feasibility studies for all the arenas have been required or completed. Staff indicate that the first quarterly analysis report will be provided by Cinergy Solutions to the City by the end of January 2008....

Energy Retrofit project, “Energy and Water Efficiency Retrofits” City of Toronto, Green Municipal Investment Fund (GIMF). Loan Agreement, between the City of Toronto and the federation of Canadian Municipalities (FCM). Project No.5055.

Agreement made on March 23 2006.

Maximum of loan is $8,750,000. It comes in five instalments (called “disbursements), one on Dec.31 of each year from 2006.

CELOS wishes to make submissions with respect to the following issues set forth in the Notice of Inquiry and the additional issue of a compelling public interest:

1) THIRD PARTY INFORMATION – Issue B: Part 3 : harms

CELOS submits that the City of Toronto has not discharged its burden of providing “detailed and convincing” evidence to establish a “reasonable expectation of harm” to the third party. Nor is there anything exceptional about the circumstances in this case to suggest that any harm can be inferred.

2) COMPELLING PUBLIC INTEREST

In the event that the Commissioner finds that the City has established a “reasonable expectation of harm”, CELOS argues that the compelling public interest of disclosure in this case clearly outweighs the purpose of the exemption.

3) SEARCH FOR RESPONSIVE RECORDS – Issue C: reasonable search

The City asserts that the requested Loan agreement with the Federation of Canadian Municipalities for Green Municipal Investment Fund (GMIF) has not been finalized.

CELOS submits that the City’s own documentation asserts that the $ 10.3 million Cinergy contract was approved by City Council based on the information that
$ 2.5 million of the total contract price was to be financed through the GMIF loan which had been approved as of or before April 30, 2004.

This makes the City’s assertion that the loan agreement has not yet been signed almost two years later (well after the arena work began), very puzzling. How does the City council report square with the City’s response to CELOS, that the requested record has not yet been created?